Opinion
Decided July 2, 2001.
Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered July 20, 2000, which in a proceeding pursuant to CPLR article 78 (initiated in that court pursuant to Public Health Law § 230-c), modified, on the law, and, as modified, confirmed a determination of respondent Administrative Review Board for Professional Medical Conduct finding that petitioner committed professional misconduct and revoking petitioner's license to practice medicine in New York. The modification consisted of annulling so much of the determination as found petitioner guilty of violating Education Law § 6530 (18) and (29) and remitting the matter to the Administrative Review Board for a redetermination of the penalty imposed.
Submitted by Robert H. Easton, for appellants.
Submitted by Katherine Herr Solomon, for respondent.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
MEMORANDUM:
The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the matter remitted to that court for review of the sanction imposed and any other issues not considered in view of the disposition of that court.
The Appellate Division annulled appellant New York State Department of Health's determination that petitioner's conduct violated Education Law §§ 6530(18) and (29) by reaching an unpreserved issue "in the interest of justice." This was error. Judicial review of administrative determinations pursuant to article 78 is limited to questions of law (see, Matter of Featherstone, 95 N.Y.2d 550, 554; CPLR 7803). Unpreserved issues are not issues of law. Accordingly, the Appellate Division had no discretionary authority or interest of justice jurisdiction in reviewing the agency's determination of guilt below (see, Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, rearg denied 96 N.Y.2d 834).
On review of submissions pursuant to section 500.4 of the Rules, order, insofar as appealed from, reversed, with costs, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein.